News analysis: Ruling’s ‘staying power’ questioned

Twenty New Haven firefighters – 19 of them white, one of them Hispanic – stood outside the federal courthouse on Church Street on Monday. Hours earlier, the Supreme Court had ruled in their favor.

Dressed in blue uniforms, the “New Haven 20,” as they have come to be known, declared victory on a legal battle that began in 2004, when the city scrapped the results of a promotional exam after finding that black firefighters had scored poorly.

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In a 5-4 decision, the Court’s majority asserted that the city of New Haven’s reason for throwing out the test’s result results – that it would have faced a lawsuit from the black firefighters – did not justify its actions.

But for a case that could have far reaching implications not only for employment practices in the United States but also for Judge Sonia Sotomayor’s LAW ’79 nomination to the Supreme Court, legal experts agreed that the ruling was an unusual one.

In fact, the case’s very eccentricities had onlookers, pundits and Supreme Court justices alike wondering whether the ruling had only further muddled the constitutional issues at hand.

Wrote Justice Ruth Bader Ginsburg in her dissent: “The Court’s order and opinions, I anticipate, will not have staying power.”

FAR FROM THE END

Even after Monday’s ruling, several groups believed that the legal battle surrounding the Ricci case had yet to be decided.

Gary Tinney, president of the New Haven Firebirds, a group for black firefighters, said at a press conference Monday afternoon that the Firebirds’ lawyers believe that the decision did not say the test was valid or legal.

Similarly, John Brittain, special counsel to the Connecticut Conference of the NAACP, said there was nothing in the Ricci ruling that would prevent the NAACP from challenging the merits of the city’s exam.

“The NAACP believes this fight is not over,” he said.

Proving that the test was flawed could save the city’s case for nixing the test. But finding new evidence that the exam was discriminatory will be difficult, Yale Law School professor Christine Jolls said.

In interviews with Jolls, former New York Times Supreme Court reporter Linda Greenhouse LAW ’78, former U.S. solicitor general Drew Days and St. Louis University School of Law professor Marcia McCormick, the sentiment was unanimous: A suit filed by the black firefighters would likely fall flat.

And it would fall flat largely because of the way the Court ruled. Writing for the majority, Kennedy wrote that the city would not be liable for a test that had a disproportionately negative impact on one group, so long as the city shows that had it not certified the test, it would have been vulnerable to a lawsuit from one or multiple other groups.

It is a situation that Justice David Souter characterized during oral arguments as “damned if you do, damned if you don’t.”

AN UNUSUAL RULING

In its ruling, the Supreme Court changed the standard for evaluating an employer’s behavior, setting what it called a “strong-basis-in-evidence” standard. The new measure means that before a test can be thrown out, the employer must have significant proof that the test is either not job related or that there is an alternative test of equal or greater quality that would produce results that are more racially balanced.

Before the Court’s ruling Monday, if a test produced results that were not racially balanced, the employer had to discard the test unless it had significant proof that the exam was job related and there was not an alternative test that would produce more racially-balanced results.

Usually, when the Supreme Court changes a legal standard, it sends the case back to the lower court and asks it to see if the plaintiffs meet the new standard. In this case, however, the Court itself decided that the city had not met the new standard to show the test was not job-related or that there were less discriminatory alternatives – one of which is necessary for a Title VII disparate impact claim.

“It’s an aggressive thing to do,” Greenhouse said. “It is not what they usually do.”

Days echoed this sentiment, saying that he was surprised that the Court did not give the city a chance to prove its case in front of a trial court under the new standard.

In her dissenting opinion – which was co-signed by Justices Stephen Breyer, David Souter and John Paul Stevens – Ginsburg wrote that this action “stacks the deck” against the city.

“When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance,” she said. “I see no good reason why the Court fails to follow that course in this case.”

Ginsburg was particularly strong in her dissent: She read it from the bench, something she has done only a handful of times in her over 15 years on the Court.

The black firefighters were also upset that the court did not send the case back to a trial court.

“We believe it is unfair that the Court changed the rules in the middle of the game,” Brittain, the NAACP attorney, said. “It did not give the city a chance to go back to trial to try to meet the new standard.”

NO SHORTAGE OF CONSEQUENCES

The ruling could have far-reaching implications for employers.

The ruling changes how Title VII – which applies to all American businesses, public or private, that have more than 15 employees – is interpreted.

“It may hamstring American businesses,” Jolls said.

Before the Court’s ruling, if a company administered, for example, a typing test to job applicants as part of deciding whom to hire and found that Hispanics scored much lower than whites, they could choose to just throw the test out.

Now, Jolls said, the company is in a bind. If it uses the test minorities will sue claiming the test was discriminatory. On the other hand, in order for it to throw out the test it needs to prove beyond a “strong-basis-in-evidence” that the test was not job-related or that there were less discriminatory alternatives.

As a result of the ruling, McCormick said, employers will be unlikely to change anything after a testing process has begun, as they now need to have a good reason to believe the test had disparate impact (meaning that the test, while neutral on its face, unjustly discriminates against a particular group).

There is language in the opinion, Days said, that suggests employers can look at a test’s potential for disparate impact before they administer it. This might make employers examine their process earlier on, he added.

“Taken to the extreme,” McCormick said of the ruling, “if you notice you have a black applicant and a white applicant and you hire one, you are almost automatically opening yourself to liability from the other.”

Put simply, the Court decided a broad issue on a set of narrow circumstances, Days said. In the future, when the situation is slightly different, it could cause problems.

IMPLICATIONS FOR A NOMINEE

Opinions are mixed on what impact the decision will have on the nomination of Sonia Sotomayor LAW ’79. The Supreme Court’s decision Monday overruled a decision by a three-judge panel of the U.S. 2nd District Court of Appeals that included Sotomayor.

McCormick, Greenhouse and Jolls said they do not think the decision will hurt Sotomayor as she weaves her way through the confirmation process.

“A judge on the Court of Appeals is very different than a judge on the Supreme Court,” McCormick said. “There was 2nd Circuit precedent that set the outcome on the case at that level that Sotomayor had to follow.”

The White House had a similar response.

“There’s little political significance to whatever the court decided today in terms of Judge Sotomayor except to render a fairly definitive opinion that she follows judicial precedent and that she doesn’t legislate from the bench,” Press Secretary Robert Gibbs told reporters on Monday afternoon.

But while Gibbs defended the Law School graduate, conservative groups immediately released statements going on the attack.

“Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession,” said Wendy Long, counsel to the Judicial Confirmation Network, a legal group that supports conservative nominees for the Supreme Court. “What Judge Sotomayor did in Ricci was the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One.”

In his opinion, Kennedy avoided criticizing the appellate court’s ruling, and thus giving any additional fodder to Sotomayor’s critics. In addition, the four dissenting justices — including Souter, whom Sotomayor would succeed on the Court — agreed with the 2nd Circuit ruling, a fact that many Democrats are citing as evidence that Sotomayor should not be judged as out of the mainstream.

AVOIDING THE CONSTITUTIONAL QUESTION

In the majority opinion, the Court avoided ruling on the constitutional question of the case: the apparent contradiction between Title VII and the Equal Protection Clause of the Constitution. On the one hand, disparate impact requires consideration of race; on the other, the Equal Protection Clause prohibits race’s consideration.

Indeed, Scalia, in a concurrence that none of the other justices co-signed, warned of a legal battle to come.

“The war between disparate impact and equal protection will be waged sooner or later,” he wrote, “and it behooves us to begin thinking about how — and on what terms — to make peace between them.”

Congress can pass legislation to overrule the Court’s interpretation of Title VII, but whether it would stand up to judicial scrutiny is another question. Any such a measure approved by lawmakers could itself be overruled by the Court if justices were to find it to go against the Equal Protection Clause, a matter of interpretation that, barring a Constitutional amendment, rests entirely in their hands.